Volume 23 — Ohio Circuit Court Decisions

<p>Error to Lucas common pleas court.</p>

<p>DAM AGES — N EGLIGENCE — STREET RAI LWAYS.</p> <p>1. Negligence from Inattention to Duties by Motorman, Established.</p> <p>Running down a six-year-old girl, who fell upon the track 150 to 200 feet ahead of a street car, before she could recover from her fall, indicates negligence in operation, either in running the car at a reckless rate of speed, or inattention on the part of the motorman if he was running at reasonable speed. Proof that he did not cut out the power or apply the brakes until after passing over the child or until signaled, by the conductor to stop at a regular -place for passengers to alight, in the absence of a reasonable account by the motorman of the cause of the accident warrants a verdict against the company.</p> <p>2. Use of “Peculiar" for “Pecuniary” in Describing Injury not Prejudicial.</p> <p>The use by the court, in his instructions to the jury as to determination of damages, of the word “peculiar” as applied to injury resulting from the death of a six-year-old child by negligence, it being qualified or defined by other parts of the charge relating to the -same subject as “pecuniary” injuries, is not necessarily or presumably prejudicial.</p> <p>3. Charge Erroneously Designating Beneficiaries of Damages for Wrongful Death not Prejudicial.</p> <p>Under R. S. 6135 (Cen. Code 10772), prescribing the bringing oí actions for death by wrongful act, the apportionment of damages therefor is of no concern or interest to the negligent party against which damages are recovered. Hence, an instruction to the jury in such a case that they are to take into consideration the money value of the services of a six-year-old girl to the father, mother and next of kin, although erroneous as to the “next of kin,” is not prejudicial in that nobody but the father, and in some contingencies, the mother, have any pecuniary interest in her services. The jury should allow the full value of her services, and it is not to be supposed that in apportioning the damages they would multiply the value of her services by the number of beneficiaries.</p> <p>4. Verdict'of $1.000 for Death of Six Year Old Girl, not Excessive.</p> <p>A verdict of $1,000 for the death of a six-year-old girl, large of her age and bright and active, and a helper in a large family v of moderate means where all helped, is not excessive.</p> <p>[Proof of this decision and syllabus was submitted to Judge Parker and corrected. — Ed.]-</p>

Error- to common pleas court. The indictment upon ivhich this prosecution was based charged that the accused 1 ‘ unlawfully did have carnal copulation against nature with a certain male person # * * in an opening of the body” of another. There was no contradiction of the evidence on the part of the prosecution that the accused, a grown man; had carnal copulation with a boy about nine years on the date and at the place averred. Penetration was clearly proved.

<p>DEATH — NEGLIGENCE—RELEASE.</p> <p>Release by Employe of Claim for Injuries Bars Estate, But not Widow or Next of Kin.</p> <p>A release in full for all claims for damages growing out of an injury received by an employe bars his estate, under Gen. Code 11897, from further recovery in the event of his subsequent death in consequence of such injuries, but leaves intact any claim for loss sustained by the widow or next of kin, under Gen. Code 10770.</p>

The plaintiff below recovered a judgment of $2,500, for loss of his left hand by a saw, operated in the factory of the defendant below.

<p>Error to common pleas court.</p>

<p>MUNICIPAL CORPORATIONS — PUBLICATION.</p> <p>1 Paid Circulation of Newspaper Means Paid Subscription Whether Paid in Advance or not.</p> <p>Subscriptions to be considered in fixing the circulation of newspapers for publication of ordinances, within the meaning of Gen. Code 4228 are not limited to those paid in advance; “bona fide paid circulation” includes “bona fide subscriptions” whether paid in advance or not.</p> <p>2. Determination by Council, as to General Circulation of Newspaper not Conclusive.</p> <p>Determination by council that a newspaper is a paper of “general circulation” in the municipality, required by Gen. Code 4228, raises a presumption of that fact merely; but such action does not preclude inquiry as to such circulation by the courts.</p>

<p>Error to Hamilton common pleas court.</p>

<p>MUNICIPAL CORPORATIONS — STREET RAILWAYS.</p> <p>City Owning Land Abutting Street may be Counted as Other Abutters in Estimating Frontage for Street Railway Franchise Thereon.</p> <p>Property owned hy a city abutting a street, along which a street railway is projected may be included in estimating the total frontage, and the city’s consent given pursuant to ordinance of its council can he counted to make a majority of the frontage required hy R. S. 3439 (Gen. Code 9105) as a prerequisite to the council’s granting a franchise thereon; it is not against public policy for the city in its adversary and dual capacity of landowner and grantor of franchise, to confer upon itself jurisdiction to act in derogation of other abutters’ rights.</p> <p>[Proof of this decision was submitted to Judge Henry and corrected. — Ed.]</p>

<p>EVIDENCE.</p> <p>1. Removal of Books for Inspection cannot be Compelled.</p> <p>A court ordering an inspection under R. S. 5290 (Gen. Code 11552) cannot require a party to remove his books, papers and documents from the place where they are ordinarily, properly and lawfully kept to some other place in order to. make it convenient for the opposite party to inspect them, and especially, to require their production at such place at a specified time before trial where the motion for inspection makes no request other than that they be produced at the trial.</p> <p>2. Action Improperly Dismissed for Refusal to Produce Books in Another County for Inspection against Order of Another Court.</p> <p>A court of one county having directed its receiver of an insolvent insurance company to keep certain of its books within that jurisdiction, a court in another county in which the receiver is a party to an action to recover premiums against the policy holder, cannot dismiss the action for his failure to produce such books for inspection under R. S. 5289 (Gen. Code 11551).</p> <p>3. Essential that Books Contain Evidence Pertinent to Issue.</p> <p>No presumption can be indulged in support of an order to produce books for inspection under R. S. 5289 (Gen. Code 11551), that the court was fully advised in the premises of each and every fact essential to the validity of its order, in the absence of any declaration in the motion, in the order or in the record, that the books contain evidence pertinent to the issue, or showing that the matter was heard upon evidence; and under such conditions, such order cannot be upheld.</p> <p>[Proof of this decision was submitted to Judge Parker and corrected. — Ed.]</p>

<p>OFFICES AND OFFICERS — TAXES.</p> <p>Auditor may Expunge Changes in Duplicate Made by Unconstitutional Board to Correct Errors in Current Duplicate.</p> <p>Acts of de facto officers under a law held unconstitutional by the Supreme Court can have no prospective operation, especially where the de facto officers as such cannot be identified with any pre-existing officers, and the only vitalizing power given the officers was that by the unconstitutional act creating the office. Hence, the Supreme Court having held act 89 O. L. 283, creating a board of equalization and assessment invalid and ousted the board, the action of the board making deductions upon the duplicate may be corrected as an error and expunged by the auditor upon the current duplicate.</p> <p>[¿roof of this decision was submitted to Judge Henry and corrected. — Ed.]</p>

<p>BONDS — TRUSTS.</p> <p>Trust Company Liable for Bonds Certified by It and Fou,nd to be Worthless by Holder, Relying on Certificate.</p> <p>A trust company as trustee under a deed of trust or mortgage having certified that “this bond is one of a series of bonds mentioned in the mortgage or deed' of trust within referred to,” well knowing that none of the property described in such mortgage belongs to the mortgagor, and redelivering to the mortgagor the bond thus certified without restriction on its use, becomes liable to a pledgee of such bond who relied upon such certificate to his prejudice, regardless of the motive in making such certificate.</p>

<p>Error to common pleas court.</p>

<p>Error to Huron common pleas court.</p>

The defendant below was accused of having unlawfully assaulted William Ryan, a young lad, while' attempting to cross one of the streets in the residential part of Cincinnati; the lad upon emerging from behind a wagon driven along the street being struck and injured by an automobile. .On the trial in the police court it appeared that the automobile was driven at a high rate of speed, one witness testifying to a speed of forty miles an hour, and on the wrong side of the street…

<p>DAMAGES — EVIDENCE—MUNICIPAL CORPORATIONS.</p> <p>1. Provision in Municipal Contract to Furnish Fire Engines Imposing Damages for Delay in Deliveries, Ambiguous in Terms or Exorbitant in Amount not Enforcible.</p> <p>A printed provision in a bid for supplying several fire engines on installment deliveries at certain fixed dates, prescribing that the "contractor shall pay” to Jhé city a sum of $25 per day “as liquidated damages” for failure to deliver “said engine or engines” at the time designated, to which no reference for identification is made in the contract to which the hid is attached. notwithstanding another printed part of the bid makes the bid part of the contract to which attached, is a formal provision not applying with precision to the plan of delivery written in the bid by the contractor and is uncertain and ambiguous. To deduct $25 per day on failure to deliver any one engine is exorbitant and since it evinces no deliberation in advance to estimate and adjust damages upon the’ entire contract and each installment thereof the provision cannot be enforced.</p> <p>2. Evidence of Provision in Subcontractor’s Agreement to Pay Damages Similar to That in Original Contractor’s Contract with City not Admissible to Show Mutual Interpretation by Original Parties.</p> <p>Evidence that a contractor, agreeing to furnish a city with a certain number of fire engines at different dates or pay certain damages per day for failure to deliver “said engine or engines” at the time fixed, imposed on his subcontractor a contract similar in respect to payment of damages is,not admissible in an action by the contractor to recover money deducted by the city pursuant to such provision to show mutual interpretation by the original contracting parties.</p> <p>[Proof of this decision was submitted to Judge Henry and corrected. — Bd.]</p>

<p>EQUITY — INSURANCE—QUO WARRANTO.</p>

<p>Appeal from 'common pleas court.</p>

<p>Error to common pleas court. '</p>

<p>Appeal from common pleas.</p>

<p>Assessment for Street Improved Under Unconstitutional Law not Invalid.</p> <p>A holding by the Supreme Court that the law under which a street improvement was begun and completed was unconstitui tional because not of uniform operation, does not invalidate the assessment levied for payment of the improvement, where the law was of such a character previously upheld by the court.</p> <p>[Syllabus by the court.]</p>

<p>INJUNCTION — PUBLICATION.</p> <p>1. Competency of Newspaper for Publication of County Commissioners’ Report Tested by Injunction, not Alone by Mandamus.</p> <p>Injunction lies to determine the competency of a newspaper in which to publish the financial report of county commissioners required by Gen. Code 2508; mandamus is not the only remedy to test the right to publish such reports.</p> <p>2. Amount of Financial Report of Commissioners does not Affect the Necessity of Publication in a Newspapér.</p> <p>The necessity of publication of a county commissioner’s financial report in a newspaper pursuant to Gen. Code 2508, is not affected by the comparative amount of money involved in the report and the cost of publication thereof.</p> <p>3. Newspaper of 800 Circulation in County of 50,000, with but Sixteen in Part of County Containing 35,000 Inhabitants Is of General Circulation.</p> <p>A newspaper having a circulation of about 800 subscribers in a county of about 50,000 inhabitants, in fifteen of the twenty townships of which it had a circulation of thirty-six subscribers out of a population of 35,000 or more, and the remainder of its circulation being in a part of the county containing the other five townships, is a paper of general circulation within the meaning of Gen. Code 2508. Parker, J., dissents.</p>

<p>1. Purchaser at Foreclosure Sale Held Proper Party to Prosecute Error Upon Motion Sustained to Set Sale Aside.</p> <p>A purchaser at a sheriff’s sale, under a decree in foreclosure, is sufficiently a party to the action in which the sale1 is made to prosecute error to the circuit court to reverse the judgment of the court of common pleas upon a motion sustained by said court in setting aside the sale of the real estate made by the sheriff.</p> <p>2. Judicial Sale not Set Aside to Allow Bid of Purchaser to be Advanced by Another Purchaser.</p> <p>In the absence of fraud, irregularity or misconduct affecting the validity of a judicial sale, such sale will not be set aside and' confirmation refused in order to allow the bid of the purchaser to he advanced by another purchaser.</p> <p>3. Appraiser not Preventing Bidding, Obtaining on Day of Sale Option from Purchaser, does not Affect Validity of Sale.</p> <p>The fact that one of the appraisers of the real estate did on the day of the sale obtain an option from the purchaser for a one-half interest in the premises does not affect the regularity and validity of the sale, in the absence of any showing that • said appraiser did in any wise prevent any one from being present or bidding at said sale.</p> <p>[Syllabus approved by the- court.]</p>

<p>COUNTIES — OFFICE AND OFFICERS.</p> <p>Commissioners are not Entitled to Additional Fees for Service on the Board of Equalization.</p> <p>■ County commissioners have their compensation fixed by R. S. 897 (Gen. Code 3001) and are not entitled to additional compensation for services as members of the board of equalization under either R. S. 2813 or 2813a (Gen. Code 5594 or 5597).</p>

<p>DEDICATION — MUNICIPAL CORPORATIONS — PLATS.</p> <p>1. Private Proprietors cannot Plat Lands to Interfere with Work of Municipal Platting Commission.</p> <p>A municipal platting commission, for which provision is made by R. S. 2629 (Gen. Code 4347 et seq., in defining and locating the streets and alleys of a municipality, is required to secure uniformity and regularity therein, to eliminate jogs, twists, turns, pockets and haphazard contrivances against public interest; and having performed this important work and adopted plats, private proprietors of lands within a platted territory cannot interfere therewith even with the consent and cooperation of the municipal council.</p> <p>2. Amendment of Plat Adopted by Municipal Platting Commission Must be by Resubmission to Commission.</p> <p>A plat, adopted by a municipal platting commission, goes upon record without being submitted to the municipal council. Having been so adopted, amendment may be had only by resubmission to a regularly constituted platting commission as provided by R. S. 2636 (Gen. Code 4355). It is not subject to amendment by a council nor otherwise than upon regular statutory proceedings to vacate streets and alleys.</p> <p>3. Other Streets May be Laid Out if They do not Interfere with Platting Commission’s Report.</p> <p>Under R. S. 2601 (Gen. Code 3584) streets other than those laid down by a municipal platting commission may be laid out and established in the city notwithstanding R. S. 2633 (Gen. Code 4351) provides that no streets, except those laid down in such plat should be laid out; but such additional streets must not interfere with streets and alleys laid out by such commission.</p> <p>4. Essential to Dedication of Additional Streets.</p> <p>To lay out streets additional to those adopted by a municipal platting commission the plat must show the certificate of the municipal engineer that the streets do not interfere with the plat 'of the municipal platting commission, and the plat must have the approval of the municipal council.</p> <p>[Proof of this decision and syllabus was submitted to Judge Parker and corrected. — Ed.]</p>

The delivery of the money to the attorney for transmission to defendant, Mrs. ITupfer, was accompanied by a valid declaration of trust in her favor; and the trust was perfected by the delivery of the money to the attorney for the use of Mrs. Hupfer, and this court is called upon to declare and execute the trust. 1 Perry, Trusts Sec. 98; Connecticut River Sav. Bank v. Albee, 64 Yt. 571 [25 Atl. Rep. 487; 33 Am. St. Rep. 946], citing authorities.

On the trial below the plaintiff was awarded $300 damages for injuries sustained by her in being thrown to the ground by the premature starting of a summer car, from which she was attempting to alight, causing a miscarriage in consequence of her injuries.

An action was instituted in the court below for personal injuries, sustained by a passenger in stepping from a street car into a hole twelve inches deep in the street, and being thrown violently to the ground.

<p>Error to common pleas court.</p>

<p>History of section 25 of the game law. 73 O. L. 216; 80 O. L. 93; 82 O. L. 238; 83 O. L. 188; 84 O. L. 168; 85 O. L. 323; 87 O. L. 66; 92 O. L. 116; 93 O. L. 4; -94 O. L. 234; 95 O. L. 374; 97 O. L. 463, 471; 99 O. L. 364, 382.</p> <p>Snowy or ivhite heron not within contemplation of statutory inhibition, State v. Both, 51 Ohio St. 209 [37 N. E. Rep. 259; 46 Am. St. Rep. 566] ; People v. Eesterberg, 184 N. Y. 126 [76 N. E. Rep. 1032; 3 L.'R. A. (N. S.) 163; 128 Am. St. Rep. 528],</p> <p>Rules of construction, 26 Am. & Eng. Enc. (2 ed.) 598; Emted States v, Fisher, 6 U. S. 399 [2 L. Ed. 304] ; Levy v. McCartee, 31 U. S. (6 Pet.) 102 [8 L. Ed. 334]; Millard'v. Lawrence, 57 U. S. (16 How.) 251 [14 L. Ed. 925] ; Bishop, Stat. Cr. Secs. 218, 227; State v. Meyers, 56 Ohio St. 340 [47 N. E. Rep. 138] ; Winnett v. State, 10 Oirc. Dec. 245 (18 R. 515), affirmed, no op., State v. Winnett, 62 Ohio St. 650.</p>

Attainment of majority pending suit. Railway v. Hut-chins, 37 Ohio St. 282; Gard v. Neff, 39 Ohio St. 607. No reversal where defendant in error files remitter. Van Boskerck V. Torbert, 184 Fed. Rep. 419 [107 C. C. A. 383]; Niebling v. Lcddlaw, 32 O. C. C. 371 (12 N. S. 463). Legal presumption that plaintiff is of full age at the time he sues. Hanly v. Levin, 5 Ohio 228; Burkham v. Cooper, 1 Circ.

<p>TRUSTS AND TRUSTEES.</p> <p>Trust Created by Deed and Will Pursuant to Parol Agreement not Allowed to Fail for Awkwardness In Conception and Defective Execution.</p> <p>An agreement between a mother, owning and having interests in family property, and her children by three marriages, unequally owning and having interests in the family property, to place all their property in trust so that all the children would share equally, to be evidenced by a deed and will, prepared by legal advisor, will, after her decease leaving such will, be deemed a trust supported by an executed consideration, and notwithstanding the plan was awkwardly conceived, the deed defectively executed, and the will without the deed defeats such agreement, the trust will be perfected according to agreement and then enforced.</p> <p>[Proof of this decision was submitted to Judge Henry and corrected. — Ed.]</p>

<p>Error to common pleas court.</p>

<p>APPEAL — ESTOPPEL—PLEADING.</p> <p>Defense of Discharge in Bankruptcy Instituted and Obtained Pending Appeal from Judgment in Attachment Subject to Facts of Estoppel in Record.</p> <p>A supplemental answer setting up a defense of discharge in ruptcy, the petition for which is filed and decree obtained pending appeal from a judgment of a justice of the peace in attachment, cannot upon judgment for defendant upon the bar of discharge operate to give recourse either upon the appeal bond or undertaking for release of attachment, unless the defendant is estopped to interpose such defense; hut neither the fact that no. exception is reserved to the order granting leave to file such answer, nor insufficiency of a reply to allege estoppel, can \ operate to prevent the assertion of estoppel on trial if the record discloses facts sufficient to constitute estoppel. Such record facts appearing the court should prevent the interposition of such defense.</p> <p>[Proof of this decision was submitted to Judge Henry and corrected. — Ed.]</p>

<p>CONSTITUTIONAL LAW — HIGHWAYS.</p> <p>1. General Statute Requiring Labor on Highways not Rendered Unconstitutional by Special Act Exempting Certain Counties from its Operation.</p> <p>Act 98 O. L. 327 (Gen. Code 3375 et seq.), requiring labor on highways, is not rendered in contravention of Art. 2, Sec. 23, of the constitution, prescribing uniform operation for general laws, by act 95 O. L. 104 purporting to exempt certain counties from its uniform operation.</p> <p>2. Averring Nonattendance at Road Work Equivalent to Averment of Nonattendance of Defendant or Substitute.</p> <p>A petition in an action to recover a penalty prescribed by act 98 Ó. L. 329 (Gen. Code 3378) for failure of defendant to attend by .himself or substitute when notified to perform work on the highway, that avers his nonappearance when summoned, is sufficient and covers his delinquency both as to failing to attend himself and failing to send a substitute.</p> <p>3. Road Superintendent Proper Party to Sue for Penalties under Road Labor Act.</p> <p>A road superintendent under act 98 O. L. 330 (Gen. Code 3383, 3384) is the proper party to bring an action to recover penalties prescribed by that act.</p> <p>[Proof of this decision was submitted to Judge Henry and corrected. — Ed.]</p>

<p>Error to common pleas court.</p>

<p>EXECUTION — JUSTICE OF THE PEACE.</p>

Plaintiff below sued on two causes of action, one for $47.59 on an account and the other for $93.90 for picture films which were destroyed by fire. The verdict below was for the full amount claimed with interest.

<p>Error to common pleas court.</p>

<p>ALIMONY — CONTEMPT OF COURT.</p> <p>Finding a Husband in Contempt for Failure to Pay Alimony Awarded Presumes His Failure to Establish Inability to Pay.</p> <p>A decree ordering a husband to pay alimony to his wife imports his ability to pay the amounts adjudged; hence, a complaint in contempt for default in payment need not allege his ability to pay the same, and in the absence of a bill of exceptions, containing the evidence on the hearing it will be presumed, on a finding of contempt, that defendant failed to establish his inability to pay.</p>

<p>Verbal Agreement to Purchase Property In Name of One Party and Reconvey to Second Party not Enforcible, no Trust Results.</p> <p>S made a verbal agreement with M and wife that the latter parties should purchase a certain piece Of real property with their own funds and take title in the name of the wife, and after such purchase and conveyance M and wife were to convey^ an undivided one-half interest in the property to S, he paying one-half the original purchase price. M and wife purchased the property with their own money — S paying no part of the purchase money — and took title in the name of the wife. On refusal of M and wife to convey to him, S brought suit to recover an undivided one-half interest in the property. Held, that no trust resulted from the transaction and that the verbal agreement could not be enforced.</p> <p>[Syllabus by the court.]</p>

<p>EVIDENCE — NEGLIGENCE—TRIAL.</p> <p>Evidence of Injuries Other Than Those Alleged in the Petition Prejudicial.</p> <p>It is prejudicial error to admit, over the objection of the defendant in an action for personal injuries, evidence as to injuries sustained by the plaintiff other than those alleged in the petition and further error intervenes where the court charges the jury with reference to such other injuries.</p>

<p>Error, to common pleas court.</p>

<p>NEGLIGENCE — PLEADING.</p> <p>Allegation That Cogwheels Exposed “Were Not Covered” Held Insufficient.</p> <p>A petition for damages on account of injuries alleged to be due to exposed cogwheels under R. S. 4364-89c (Gen. Code 1027). does not state facts sufficient to constitute a cause of action where the petition merely avers that the wheels complained of “were not covered,” and does not allege that no railing had been placed around them.</p>

<p>Error to common pleas court.</p>

The trustees of the Cincinnati Southern Railway acting under See. 3 of supplemental act 70 O. L. 139, resolved, in 1903, to lay a track on Front street in Cincinnati for the purpose of connecting its line with its freight depot at Vine street, and received the assent of the board of the proper officials so to do.

<p>Error to common pleas court.'</p>

<p>ANIMALS — EVIDENCE—PLEADING.</p> <p>Averment of Viciousness of Dog or Knowledge thereof by Owner not Prerequisite to Recovery for its Bite.</p> <p>An allegation that a dog was vicious or that, its vicious disposition was known to the owner is not prerequisite to recovery of damages for injuries resulting from its hite under Gen. Code 5838; evidence of its character as to viciousness is admissible.</p>

<p>Error to common pleas court.</p>

<p>Error to common pleas court.</p> <p>Cited and commented upon the following authorities: Berlet v. Weary, 67 Neb. 75 [93 N. W. Rep. 238; 60 L. R. A. 609; 108 Am. St. Rep. 616]; Rhodes v. Walsh, 55 Minn. 542 [57 N. W. Re’p. 212; 23 L. R. A. 632] ; Johmon v. Offult, 61 Ky. (4 Mete.) 19; Catlett v. Morion, 14 Ky. (4 Lift.) 122; Gentry v. Griffith, 27 Tex. 461; Merrick v. Giddings, lVIacAr. & M. (11 D. C.) 55; Howard v. Bank, 12 App. Cas. ,(D. C.) 222; Orth v. McCook, 2 Dec. Re. 624 (4 W. L. M. 215); 26 Am. & Eng. Enc. Law 661, 662.</p>

<p>CONFLICT OF LAWS — SALES.</p> <p>1. Requirement of Refunder of Part of Payment Made on Chattels Conditionally Sold Applies to Remedy and Operates in Ohio against Recovery on Sales Made in Other States.</p> <p>The provision of Gen. Code 8570 requiring one who sells chattels with reservation of title till payment of price to tender or refund back part of the money already paid before taking possession, pertains only to the remedy and will be observed by the courts whose jurisdiction is invoked to recover posJ session of the property where such sales have been made in another state.</p> <p>2. West Virginia Laws Conflicting with Ohio Laws as to Refunder of Part Payments on Chattels Sold with Title Reserved in Seller not Enforclble Here. i</p> <p>The laws of West Virginia on the subject of conditional sales of chattel property not requiring the vendor in such sales to tender or refund to the purchaser of such property or any party receiving it from the vendor any portion of the money paid for the property before recovering possession of the same, although more than 25 per cent of the contract price has been paid, being in conflict with the established policy of our own state on the subject as shown by our statutes, will not be enforced by the courts of this state.</p>

<p>CRIMINAL LAW — INTOXICATING LIQUORS.</p> <p>1. Jurisdiction of Offenses Committed Beyond Low Watermark on Ohio River Opposite Ohio.</p> <p>The state of Ohio has criminal jurisdiction of offenses committed beyond low watermark on the Ohio river, opposite the boundary of the state of Ohio.</p> <p>2. Sale of Intoxicating Liquors on Boat in Ohio River Opposite Dry Territory with Passageway to Boat, Illegal.</p> <p>It is a violation of R. S. 4364-20b (Gen. Code 13232) to sell intoxicating liquors, as a beverage, on a boat anchored in the Ohio river opposite the shore of a municipality of this state, with a passageway fqr persons to and from the bank of said river in said municipality to said boat, after a majority of the voters of the municipality had voted to prohibit the sale of intoxicating liquors therein.</p>

<p>Error to common pleas court.</p>

<p>Error to common pleas court.</p>

<p>EXECUTORS AND ADMINISTRATORS.</p>

<p>BONDS — COURTS—ERROR.</p> <p>1. Appellate Jurisdiction of Common Pleas on Appeal From J. P. Cannot be Attacked on Error.</p> <p>Though the common pleas court is limited in its appellate jurisdiction to the amount, $300, for which a justice of the peace may enter judgment, yet if the parties proceed ’ to trial upon the merits, without objection to the jurisdiction on the ground that judgment is prayed for more than $300, it is too late upon error to make such an objection.</p> <p>2. Bond to Put Sidewalks in Good Condition Complied With When Put in Such Condition as Reasonable Man Would Regard Satisfactory.</p> <p>A bond to repair certain sidewalks and put them in good condition, satisfactory to the other party, is complied with if the walks are put in such good condition as a reasonable man, under like circumstances, would regard as satisfactory.</p>

<p>GAME LAWS.</p> <p>White Heron, a Vagrant Bird, Possession or Sale of Plumage of Which is not Proscribed.</p> <p>The white heron, having been excluded from the term “game bird” by Gen. Code 1412, defining game birds, is not included in Gen. Code 1409 prohibiting the sale or possession of plumage of “any wild bird other than game birds,” since it is not a native bird or one migratory in the state at certain periods; but, instead, it is a transient or vagrant individual of a class whose habits are not to migrate either to this state or across it.</p>

Plaintiff below recovered a verdict below of $229.64, on account of injury to a horse and wagon and its load from being struck by one of the Norfolk & Western Ry. trains at Langdon and Floral avenues, Evanston.

<p>ATTORNEYS — COURTS—DISBARMENT.</p>

<p>INTEREST AND USURY.</p>

<p>1. Mere Physical Capacity to Carry off Sewage of Lot not Local Drainage in Contemplation of Statute.</p> <p>A sewer physically adequate to supply local drainage to a given lot alone does not necessarily supply such “local drainage” as is contemplated by Gen. Code 3819.</p> <p>2. Assessments for Sewer as Part of Münicipal System not Enjoin-able.</p> <p>Local drainage, within the meaning of Gen. Code 3819, comprehends such drainage as is necessary for the general welfare and protection of the public health; it is not confined to the convenience of the owner; hence, an assessment for constructing a sanitary sewer and intercepting basins to carry off storm water into a running stream as part of a general system of sewers and disposal plant of. a municipality designed to prevent the contamination of the waters of such stream, and thereby protect the public health, will not be enjoined even though a former sewer was adequate for plaintiff’s needs.</p> <p>[Syllabus approved by the court.]</p>

<p>DEEDS — EVIDENCE—UNDUE INFLUENCE.</p>

<p>Liability of Assignee for Rent of Premises Occupied in Continuing the Business.</p> <p>That a lessor of premises, occupied hy an assignee for the benefit of creditors, together with the general creditors, signed an application for an order continuing the business, does not bar payment of rent by the assignee as part of the expense of administering the trust, since the lessor signed the application for a continuance of the business with the understanding that his claim for rent should not be affected thereby. «</p> <p>[Syllabus approved by the court.]</p>

<p>CONSTITUTIONAL LAW — WORK AND LABOR.</p> <p>Act Preventing Discharge of Employes for Membership in Labor Unions Held Unconstitutional.</p> <p>The proscription of Gen. Code 12943 against employer’s preventing employes from joining or belonging to labor organizations, etc., is an unwarranted interference • with the right to contract for labor and fix conditions and terms thereof, infringing upon constitutional rights.</p>

<p>1. Railroad Not Required to Avoid Grade Crossings Unless Reasonable and Practicable.</p> <p>While one of the purposes of the grade crossings act, 97 O. L. 648 (Gen. Code 8834 et seq.), is to conserve the public safety, railway companies will not be required to avoid such crossings unless it is reasonable and practicable so to do.</p> <p>2. Preventive Application of Grade Crossings Statute not Required if Interlocking Device Successfully Used for Several Years Reasonably Operates.</p> <p>An interlocking device having been in use at a grade crossing for a considerable period, with favorable results from its operation and comparatively little interruption to the trains of either road, and to avoid the grade crossing would involve heavy expenses and other hardships to the railway companies, a case is not presented requiring the preventive application of the statute.</p> <p>[Syllabus approved by the court.]</p>

<p>ATTORNEY AND CLIENT — LIBEL.</p> <p>1. Charges for Disbarment of Attorney, improperly Instituted, not Basis for Libel Action, Being Privileged.</p> <p>The privileged character of language used in judicial proceedings is absolute; hence, an attempt to institute disbarment proceedings, by preferring written charges and filing them in the office of clerk of courts, having failed because not conforming to the order of procedure prescribed by R. S. 563 (Gen. Code 1707) cannot be made the basis of an action for libel in that such charges were not filed with any judge.</p> <p>2. Knowledge Brought to Judge of Disbarring Acts by Written Charges Filed with Clerk of Courts.</p> <p>Knowledge of probable guilt of an attorney, upon which disbarment proceedings may be instituted under R. S. 563 (Gen. Code 1707), is properly brought to the judge by the complainant’s putting the charges in writing and depositing them with the clerk (preferably, sealed to be delivered) for such action thereon as the judge may take; it is neither necessary nor desirable that such charges should be whispered orally to the judge called to act upon them.</p> <p>[Proof of this decision was submitted to Judge Henry and corrected. — Ed.]</p>

<p>Error to common pleas court.</p>

<p>EVIDENCE — TRIAL.</p> <p>Variance in Plaintiff's Testimony Insufficient Ground for an Instructed Verdict.</p> <p>Variance in the testimony of plaintiff in an action for personal injuries on direct and cross-examination Hs not, taken alone, sufficient ground for a nonsuit.</p>

The plaintiff has a right to show the real purpose of the appropriation proceedings, and to do this by parol, and for this purpose all evidence is .competent. P. G. C. That the city acquired only an easement for park purposes is, we think, established by the statute. The authorities all agree that unless the statute expressly, or by necessary or clear intendment, authorizes the taking of a fee, only an easement can be taken.

<p>SALES..</p> <p>Offer to Purchase does not Constitute Enforcible Contract of Purchase Until Acceptance by Seller.</p> <p>An offer to purchase goods in accordance with a written or printed proposition previously submitted, does not constitute an enforcible contract of purchase, until the offer has been submitted to the seller and approved by him.</p>

<p>Res Adjudicata not a Bar Unless Demand In Issue has been Adjudicated on Merits to Determine Which the Record of Former Trial is Admissible.</p> <p>Res adjudicata is not a bar to recovery unless the demand sued on has been adjudicated on its merits in the former trial to determine which so much of the records of such trial as will aid in the determination of the issue interposed is admissible. Hence a judgment, inadvertently including certain items not then due or paid by plaintiff, which the court, sua sponte, on motion for new trial, deducts from the sum adjudged and to which remittitur of excess plaintiff consents, is not a bar to an action for recovery of the amounts thereafter paid.</p> <p>[Syllabus approved by the court.]</p>

The plaintiff complains that, while passing a building, the walls of which wmre being cleaned by the defendant by the sandblast process, he fell upon the sidewalk and sustained serious injuries, averring the fall was due to the littering of the sidewalk with sand, pebbles and gravel, thrown against the building by the process employed.

<p>Error to common pleas court.</p>

<p>Error to common pleas court.</p>

<p>1. Statute of Limitations does not Run on Contract for Continuous Service until Breach or Other Termination.</p> <p>The statute of limitations does not begin to run on an express contract for personal services, theretofore performed and thereafter to be rendered and performed, until the contract is terminated by breach or otherwise; failure to specify time of payment, or period of service does not operate to bar recovery for services rendered prior to six years of date of bringing the action therefor, since the contract is of continuous nature.</p> <p>2. Jury Having Been instructed that it is Incumbent to Establish Contracts by Clear and Unequivocal Proof Further Instruction Putting Burden on Plaintiff Held Unnecessary.</p> <p>In an action for personal services, consisting of housekeeping for and nursing a person not a blood relative, it is incumbent only upon plaintiff to establish by a fair preponderance of evidence a contract therefor; hence, the jury having been instructed that the contract in question must be established by clear and unequivocal proof, error cannot be predicated on a refusal to give a written instruction 'before argument putting the burden on plaintiff to prove the existence of the contract by fair and satisfactory evidence.</p> <p>3. Refusal to lhstruct that if Nonrelative by Blood Probably Rendered Services as Acts of Kindness Rather than for Compensation no Recovery can be Had not Prejudicial.</p> <p>A request to instruct a jury in an action upon an express contract for personal services rendered another by one not a blood relative, that “if you find from the evidence that it is more probable the plaintiff rendered the services described in the petition as acts of kindness than with the expectation of being paid for the same, she can'not recover” is properly refused.</p> <p>[Syllabus approved by the court.]</p>

<p>Error to common pleas court.</p>

<p>Railroad Company not Liable for Death of Boy Darting in Front of Train while Loitering on Right of Way.</p> <p>A locomotive engineer, keeping a lookout on the track in front his train, is not charged with the responsibility of watching the open railway grounds and right of way on either side of the track, in the belief that mere licensees on such grounds will attempt to cross the track in front of his train, and the company is not liable for striking a hoy who did attempt to cross the track almost immediately in front of a train.</p> <p>[Syllabus approved by the court.]</p>

<p>MASTER AND SERVANT — PARTIES—TRIAL.</p>

On the. trial below motion for judgment on the pleadings was granted, Judge Spiegel rendering an opinion as follows: “This cause arises out of the following state of facts: “John Robinson, through his agent, the Robinson estate, rented this opera house to George F. Fish and other parties.

<p>ACTIONS — CONTRACTS.</p> <p>Recovery upon Implied Quantum Meruit, Special Contract Denied, Held Affirmed.</p> <p>Recovery upon election to sue upon an implied quantum meruit, denial of special contract having been made in writing before suit commenced, is affirmed.</p>

<p>COMPENSATION AND SALARIES.</p> <p>Construction of Agreement as to Attorney’s Fees in Trust.</p> <p>“Fees” in a trust instrument will not be regarded as referring in any way to an agreement as to fees, entered into between the cestui que trust and her attorney prior to the creation of the trust and without the knowledge of the grantor, but in such a case the attorney for the cestui que trust will be allowed to recover as- fees out of the trust funds only the fair value of the services rendered.</p>

Isaac Bishop, doing business as the Bishop Rigging Company, one of the defendants herein, was employed by the James Griffith & Sons Company, general contractors, under contract with the Gaff estate, also one of the defendants herein, to do the wrecking and rigging necessary to the taking down of the south wall of the Freiberg building on West Fourth street left standing after the Fourth street fire.

<p>Appeal from common pleas court.</p>

<p>ASSAULT AND BATTERY — DAMAGES.</p> <p>Permanency of Injuries and Impairment of Earning Capacity of Person Assaulted not Admissible Unless Such Damages were Specially Averred.</p> <p>In an action for damages for assault and battery evidence as to the permanency of the. injuries received or impairment of earning capacity of the person assaulted is not admissible if such grounds of damage were not specially pleaded.</p>

<p>Error to common pleas court.</p>

<p>Error to insolvency court.</p>

<p>Error to common pleas court.</p>

<p>Error to common pleas court.</p>

<p>WILLS.</p> <p>1. Bequest of Nonancestral Realty to Widow “Secured” to Widows of ■ Intestates by Ohio Laws, Remainder to His Brother Absolutely, Passes All Personalty and Realty in Ohio to Widow, and Realty Outside Ohio to His Brother.</p> <p>A bequest to his widow by an aged and childless man, possessed of personal and real property in Ohio and Kentucky, all acquired by purchase, of “all that part and interest in my estate, real, personal and mixed, which is secured to her, as my widow, by the laws of distribution of the state of Ohio, in the cases where wives survive husbands who dies intestate,” with a bequest of “absolutely all the remainder” to his brother, gives all his personalty and his real estate in Ohio to his widow, and all his realty outside of Ohio to his brother; the word “secured” is construed to mean what she would “obtain” or “have” as his widow at his death.</p> <p>2. Testimony of Scrivener of Will as to Declarations of Intention of Testator Incompetent in Absence of Ambiguity.</p> <p>Testimony of an attorney drawing a will as to declarations of intention of testator is not competent in the absence of ambiguity in the provisions of the wilt</p>

<p>Error to common pleas court.</p> <p>Cited and commented upon by the following authorities: White v. Boiuland, 67 Ga. 546 [44 Am. Rep. 731] ; Willis v. Jenkins, 30 Ga. 167; Walker v. Williamson, 25 Ga.' 549; Jarman, Wills 52; Clark v. Clark, 19 S. C. 345; Boundtree v. Roundtree, 26 S. C. 450 [2 S. E. Rep. 474] ; Winter, In re, 114 Cal. 18& [45 Pac. Rep. 1063] ; Fargo v. Miller, 150 Mass. 225 [22 N. E. Rep. 1003; 5 L. R. A. 690] ; Stewart,-In re, 147 Pa. St. 383 [23 Atl. Rep. 599]; Kenyon’s Petitioner, 17 R. I. 149 [20 Atl. Rep. 294]; Arnold v. Alden,. 173 111. 229 [50 N. E. Rep. 704] ; Patchen v. Patchen, 121 N. Y. 432 [24 N. E. Rep. 695]'; Heard v. Bead, 169 Mass. 216 [47 N. E. Rep. 778] ;. Knowlton v. Sanderson, 141 Mass. 323 [6 N. E. Rep. 228] ; Delaney v. McCormack, 88 N. Y. 174; Robison v. Orphan Asylum,, 123 U. S. 702 [8 Sup. Ct. Rep. 327; 31 L. Ed. 293] ; Shanks v. Mills, 25 S. C. 358; Thompson v. Ludington, 104. Mass. 193; Frey v. Thompson, 66 Ala. 287; Underhill v. Boden, 2 Ch. Div. 496; Cliappel v. Avery, 6 Conn. 31; Bigley v. Watson, 98 Tenn. 358 [39 S. W. Rep.-525]; Barr v. Denney, 79 Ohio St. 358 [87 N. E. Rep. 267].; 4 Kent 207; Richey v. Johnson, 30 Ohio St. 288; Crane, In re, 164 N. Y. 71 [58 N. E. Rep. 47]; Sinton v. Boyd, 19 Ohio St. 30 [2 Am. Rep. 369]; Hamilton v. Bodgers, 38 Ohio St. 242; Banmster v. Bull, 16 S. C. 220; Olney v. Hull, 38 Mass. (21 Pick.) 311.</p>

<p>STREET RAILWAYS.</p>

<p>DEEDS — DESCENT AND DISTRIBUTION — WILLS.</p>

<p>Allowances to Widow on Sale of Real Estate to Pay Debts to Which Error or Appeal Was not Prosecuted Cannot Be Impeached on Exceptions to Account as Administratrix.</p> <p>Allowances to a widow hy way of dower and homestead exemption, made in a proceeding to sell real estate belonging to her deceased husband to pay debts, to which no error was prosecuted or appeal taken, cannot he collaterally attacked by exception to her account as administratrix of the said estate. i</p> <p>[Syllabus hy the court.]</p>

<p>WILLS.</p> <p>Personal Property Exonerated by Specific Direction in Will to Pay from Realty.</p> <p>A testator devised a farm to her son “upon consideration that he pay to my daughter, S J L, the $1,000 which I have bequeathed to her in item three, and which sum until paid I hereby make a charge upon said farm.” The son accepted ■ the legacy.</p> <p>Held: The payment of the legacy to the daughter is a charge upon the legacy to the son, and the personalty of the testator’s estate is exonerated from its payment, at least to the extent of the son’s legacy.</p>

<p>INJUNCTION.</p> <p>Adjoining Building as Interference with Railroad.</p> <p>Th© construction near a railroad viaduct of a building which is necessary to th© enjoyment of the land and which will not unreasonably interfere with the operation of the viaduct, although it may cause some interference, will not be enjoined.</p>

<p>EMINENT DOMAIN — RAILWAYS.</p> <p>1. Judicial Determination of Municipal Absence of Power to Convey Easement Across Public Landing Held Inability to Agree.</p> <p>Inability of a municipality and railway company to agree upon compensation for an easement across a public landing, sought to be condemned by the latter by virtue of R. S. 3283a (Gen. Code 8768), must be held to exist as a matter of law, since it has been judicially determined that the municipality has no power to convey the easement without condemnation or the legislature to authorize such conveyance.</p> <p>2. Necessity of Appropriation of Easement Across Public Landing Solely in Discretion of Corporation Directors.</p> <p>The necessity for an appropriation of an easement for an elevated railroad structure across a public landing, is a question solely for the, board of directors of the company seeking to make the appropriation, and no other judgment than that of the directors exists or can be substituted.</p>

<p>Error to common pleas court.</p>

<p>LANDLORD AND TENANT — SPECIFIC PERFORMANCE.</p> <p>1. Notice by Lessee of Election to Purchase of Realty Leased with Such Privilege Sufficient to Compel Sale.</p> <p>Notice by the lessee, under a lease containing a privilege of purchase of election to purchase, is sufficient to bind the lessor to sell, and in exercising the privilege it will be presumed that payment and delivery of the deed will be concurrent.</p> <p>Z. Court may Supply Pertinent Description of Land in Decree of Specific Performance.</p> <p>Specific performance is not required to be in 'the very letter of the contract; if the contract renders it obvious what land it was proposed to convey a pertinent description will be inserted by the court in its decree.</p>

<p>Error to superior court of Cincinnati.</p>

<p>MUNICIPAL CORPORATIONS — PARTIES.</p> <p>1. Lien for Sewer Assessment not Discharged by Foreclosure Pro. ceedings.</p> <p>A municipality is not a proper party to an action in foreclosure brought by a building association, and the decree in such a case does not discharge the lien of a sewer assessment.</p> <p>2. Negligence in Enforcing Sewer Assessment does not Discharge Lien While Action is Pending.</p> <p>It is gross negligence for a municipality to fail to prosecute an action to enforce a sewer assessment for thirteen years after the answer was filed, but the lien of the assessment is not discharged so long as the action remains pending.</p>

<p>Appeal from common pleas court.</p>

<p>CONSTITUTIONAL LAW — JURY—TRIAL.</p> <p>1. Demand for Jury Trial Upon Question of Fact Improperly Refused.</p> <p>Filing an answer in an action at law for money which is no more than a defense to the petition does not change the action to one in equity, but the issue unless waived is triable to a jury under Gen. Code 11379; the fact that demand for trial by jury was not made until after trial had begun and apparently made for purposes of delay, does not affect the right.</p> <p>2. Statutory Provision as to Waiver of Jury in Certain Counties Invalid. '</p> <p>Gen. Code 11466, providing when a jury shall he deemed to have been waived, pertains to a subject of a general nature, and is rendered invalid by reason of the fact that by its terms it applies to Hamilton and Cuyahoga counties only.</p>

<p>Error to common pleas court.</p>

. Nicholas Bien was killed by an automobile belonging to Mr. Roth, which struck him as he was crossing the street at Eighth and Walnut, Cincinnati. Judgment for $9,000 was recovered below by the administratrix.

<p>1. Possession of Street Obtained by Action to Recover Real Property if City Entitled to Immediate Control Despite Railroad Easement.</p> <p>To recover possession of a city street an action for the recovery of real property, under Gen. Code 11903, is maintainable by such city, if it be otherwise entitled to the immediate possession and control of the street in question, whatever be the exact legal nature of its estate or interest, and despite any easement of the defendants for railroad purposes therein.</p> <p>2. Fifty Years’ Uninterrupted Use by Public before Adverse Easement Began Coupled with Repeated Adjudications Raise Presumption of Competent Dedication of Streets in Issue.</p> <p>Irrespective of any irregularities in the dedication of the original streets of the city of Cleveland, their long and uninterrupted use and enjoyment by the public for nearly half a century before the defendants’ use of the one here in question began, raises a presumption that such street was in early days, laid out and established by competent authority, and the conclusiveness of such presumption is emphasized by the further circumstance that the actual sufficiency of the dedication of all said original streets was long ago so settled by repeated adjudications as to be stare decisis.</p> <p>3. Limitations on Use of Dedicated Street or Diversion to Their Uses, With or Without Color of Legislative Authority, not Sufficient in Absence of Appropriation Proceedings.</p> <p>Inasmuch as it is not and never has been in the power of the legislature, unless in the exercise of the power of eminent domain, to authorize property dedicated to the public for a specific purpose to be used for any other and inconsistent purpose, it is immaterial what limitations the city of Cleveland in early days sought to place upon the public use for street purposes of one of its dedicated streets, or to what other purposes it may'have sought to divert it,' either with or without color of legislative authority.</p> <p>4. City Charter Conferring Power to “Settle and Establish Boundaries” of its Streets not Power to Vacate.</p> <p>The power conferred by Secs. 6 and 8 of the first city charter of the city of Cleveland (34 O. L. 271), to settle and establish the boundaries of its streets and to make maps and surveys thereof that should be conclusive evidence of the position and limits of such streets, is to be construed as a power in substance, to ascertain, not to alter street boundaries, and to establish the existing location of streets, not to abandon or vacate them.</p> <p>5. Cleveland never had Power except by Eminent Domain and Statutory Vacation to Part with Title in Streets Dedicated.</p> <p>It is not and never has been within the delegated powers of the city of Cleveland to part with its title, held by dedication in trust for the public, to its properly established and opened streets, otherwise than by compliance with the provisions of statutes expressly providing for their vacation or their appropriation to a parampunt public use.</p> <p>6. Act Authorizing Use of Streets in Location of Railroads does no£' Grant Exclusive Easement.</p> <p>Section 11 of “An act regulating railroad companies,” (46 O. .L. 40) and the substantially similar provisions of Gen. Code 8763, authorizing railroad companies, in' the exercise of the power of eminent domain by agreement with municipalities or by action for appropriation, to acquire the right to use and occupy public streets, when necessary in the location of their railroads, do not authorize the acquisition by such companies of an exclusive and permanent estate or easement, but of a right merely to the joint use and occupancy with' the public, of lands already dedicated or appropriated to public use for street purposes; and this right is exercisable only in such manner as shall not destroy the street, nor exclude the public use and enjoyment of any and every part of it, nor cause any nuisance therein, nor interfere with the full control and supervision thereof by the municipal authorities.</p> <p>7. Permanent Structures Placed by Railroads in Streets Nuisances, • though by Agreement with City.</p> <p>The placing by railroad companies upon city streets of permanent structures that prevent the public use of all or part of such streets, being unauthorized by statute, constitutes the maintenance of public nuisances, in favor of which, the statute of limitations does not run; especially if such structures when so placed were claimed by such railroads, however mistakenly, to be subservient to the public use to which the premises had been dedicated as a street, and pursuant to a lawful agreement with such city to that end.</p> <p>8. Doctrine of Estoppel does not Apply to Grant of Street for Railroad in Absence of Power to Make Grant Originally.</p> <p>The doctrine of equitable estoppel has no application in aid of the validity or extent of a grant to a railroad by a municipality of its street, where there is an entire absence of power to mhke such grant originally.</p> <p>9. Statute of Limitations Admissible in Defense in Ejectment against Railroad not as Tolling but Showing Character of its Possessions as Consistent with City’s Use.</p> <p>Where, in an action of ejectment brought by a city against railroad companies to recover possession of a city street, the defense of the statute of limitations is interposed by one of said companies in aid of its color of title imperfectly derived from a source paramount to that of the city, an answer filed by such company in an action to which said city was not a party and at a time when the alleged running of the statute of- limitations was hut just begun, averring that said company occupies the land in controversy by permission of and agreement with such city and in harmony with the street purposes for which said land was originally dedicated, is admissible in evidence, not as tending to prove any tolling of the statute of limitations, but as characterizing the said defendant’s possession as permissive and consistent with the original public use.</p> <p>10. Dicta in Judicial Opinions Prior to Formal Decisions of Same Court on Same Subject not Basis for Operation of Rule Fixing Property Rights.</p> <p>The fact that various dicta in the opinions of judges of the Supreme Court of Ohio, touching the proper construction of Gen. Code 8763, are prior to and inconsistent with the first . formal decisions by the same court upon that subject, affords no basis for the application of the rule of property that rights founded upon the adjudicated construction of a statute cannot be swept away by later contrary decisions.</p> <p>11. Municipal Governmental Functions as to Streets not Lost by Compromise of Litigated Title to Dedicated Street.</p> <p>The implied- authority, in all corporations with the power of suing and being sued, to compromise and settle matters of bona fide dispute or litigation to which they are parties, does not extend to the destruction or impairment of any governmental function of a municipal corporation (such as its duty to keep its streets open, in repair, and free from nuisance), by its alleged compromise settlement of a litigated title to one ■of its dedicated streets, whereby it is claimed to have surrendered its title to a substantial part of such street; especially when its adversaries in such litigation are not parties to the alleged settlement or the consideration therefor, and are not concluded thereby.</p> <p>[Syllabus by the court.]</p>

<p>DRAINS AND DITCHES — RAILROADS.</p> <p>Accepting A County Ditch by Abutting Owner Relieves Railroad Company of its Obligation to Ditoh.</p> <p>A railroad company which has, as part consideration for a right of way grant, contracted with the abutting owner, to maintain a ditch and dike along the right of way, is released from the obligation of such contract when a county ditch is subsequently located along such ditch and brings to it other waters not otherwise draining into it and such abutting owner or his successors in title have notice of the establishment of such county ditch and pay the assessment imposed for its construction, and later pay another assessment for cleaning out such county ditch.</p>

<p>Error to common pleas court.</p>

<p>Error to common pleas court.</p>

<p>ERROR — TRIAL.</p> <p>Reversible Error Results From Prejudicial Remarks by Trial Judge in Hearing of Jury.</p> <p>Statements made by a trial judge within hearing of the jury during the progress of a trial are of the' Same effect as though embodied in the charge to the jury and, if they exhibit bias against either party an opinion as to the credibility of witnesses or as to the facts in issue, prejudicial error results for which the judgment will be, reversed.</p>

<p>Error to common pleas court.</p>

<p>Error to common pleas court.</p>

<p>Error to common pleas court.</p>

<p>EVIDENCE — WILLS.</p>

<p>MUNICIPAL CORPORATIONS — TRIAL.</p>

<p>Appeal from common pleas court.</p>

As to the declarations, acts, and admissions of the grantor after the execution of the deeds, Williams v. Hears, 13 Dec. Re. 869 (2 Dis. 604); Hills v. Ludwig, 46 Ohio St. 373 [24 N. E. Rep. 596] ; Ohio. Coal Co. v. Davenport, 37 Ohio St. 194; Harvey v. Gardner, 41 Ohio St. 642; Hubbell v. Hubbell, 22 Ohio St. 208; Gates v. Storage Co. 11 Giro. Dee. 721 (22 R. 724); Hall v. Geyer, 7 Circ. Dee. 436 (14 R. 229); Thompsons, Ohio Ev. See. 313; Bury v. Young, 98 Cal. 446 [33 Pac.

<p>1. Alimony Pendente Lite Allowed Wife without Proof of Husband’s Aggressions.</p> <p>On an application for alimony pendente lite in a suit for divorce and alimony, the court may make an allowance to the wife for her sustenance and expenses during the suit, without requiring proof en her part of the truth of the allegations of her petition, charging aggressions of her husband, which constitute the grounds for such divorce and alimony.</p> <p>2. Essentials to Allowance of Alimony Pendente Lite.</p> <p>The court may make an allowance of alimony pendente lite to the wife on a proper application therefor and notice, where her petition states a cause of action for divorce and alimony, if the court is satisfied that the action is being prosecuted in good faith, that the husband is able to pay such allowance, and that the wife has no means of her own to pay for her sustenance and expenses.</p> <p>[Syllabus by the court.]</p>

<p>Error to common pleas court.</p>

<p>CONSTITUTIONAL LAW — SCHOOLS.</p>

<p>Error to common pleas court.</p> <p>Cited and commented upon by the following authorities: Robison v. Gary, 28 Ohio St. 241;. New York, C. & St. L. Ry.. v. Eistler, 66 Ohio St. 326 [64 N. E. Rep. 130]; Enopke v. Insurance Co. 99 Wis. 291 [74 N. W. Rep. 795] ; Roberge v. Bonner, 185 N. Y. 265 [77 N. E. Rep. 1023] ; Cincinnati Trac. Co. v. Ruthman, 32 O. C. C. 353; Louisville Ry. v. Blaydes, 21 Ky. L. Rep. 668 [52 S. W. Rep. 960]; Laethem v. Railway, 100 Mich. 297 [58 N. W. Rep. 996] ; La Pontney v. Cartage Co. 116 Mich. 514 [74 N. W. Rep. 712]; Manor v. Railway, 118 Mich. 1 [76 N. W. Rep. 139]; Gutierrnez v. Railway, 45 S. W. Rep. 310 (Tex. Civ. App.); Joliet Ry. v. Rich, 96 111. App. 241; Bunyan v. Railway, 127 Mo. 13 [29 S. W. Rep. 842] ; San Antonio St. Ry. v. Mechler, 87 Tex. 628 [30 S. W. Rep. 899] ; Flewelling v. Bailway, 89 Me. 585 [36 Atl. Rep. 1.056] ; Citizens’ St. By. v. Lowe, 12 Ind. App. 47 [39 N. E. Rep.‘ 165] ; Columbus By. v. Bitter, 67 Ohio St. 53 [65 N. E. Rep. 613] ; Ohio & Ind. Torpedo Co. v. Fishburn, 61 Ohio St. 608 [56 N. E. Rep. 457; 76 Am. St. Rep. 437].</p>

<p>ASSESSMENTS — PENALTIES.</p> <p>Assessments for Public Improvements not Subject to Delinquent Tax Penalty.</p> <p>Neither Gen. Code 2608 (R. S. 1053), providing for auditing a 15 per cent penalty upon delinquent land taxes, nor any other statute imposes such penalty upon unpaid assessments against real property for public improvements, and mandamus will lie to compel a county treasurer to accept assessments that are due without collecting a penalty thereon.</p>

<p>Error to common pleas court.</p>

<p>intoxication Under the Statute Contemplates Lack of Control of Faculties and Muscles of Locomotion Rather Than Flushed Face and Talkative Condition.</p> <p>The degree of intoxication contemplated by Gen. Code 13194 providing a penalty therefor is not established by proof of a flushed face, or the smell of liquor on the breath, or a disposition to talk freely or loudly, but refers rather to a condition in which control has been lost either of the faculties or the muscles of locomotion.</p> <p>[Syllabus approved by the court.]</p>

<p>APPEARANCE — ERROR.</p> <p>Lack.of Unity of Interest Shown Defeats Voluntary Appearance of Codefendants In an Error Proceeding.</p> <p>Appearance under a petition in error is not affected by the voluntary appearance of codefendants, where a lack of unity of interest is shown by the hostility of the codefendants in requiring the defendant not served to defend against them, as well as against the plaintiff in error.</p>

<p>DISORDERLY CONDUCT — MUNICIPAL CORPORATIONS.</p> <p>Loitering Held- not a Punishable Offense.</p> <p>Municipal corporations have no authority delegated by Gen. Code 3616, 3664 to provide by ordinance for the arrest and punishment of those found loitering or .wandering about the streets.</p>

<p>Agreement Between Husband and Wife to Transfer to Her Certain Furniture Competent in Suit to Foreclose Mortgage Subsequently Executed Thereon.</p> <p>An agreement between husband and wife, whereby he trans- ' ferred to her certain furniture, claimed under a chattel mortgage by him subsequently executed, is improperly excluded . in a suit to foreclose such mortgage.</p> <p>[Syllabus approved by the court.]</p>

Julius Wainer, twelve years of age, was- riding a bicycle on Ninth, near Central avenue, Cincinnati, when he was run into by a three-horse team belonging to the ■ defendant below which was being driven rapidly around the corner. __ He was thrown under the horses, one of which kicked him on the right hip, fracturing one of the bones of the pelvis. The jury below rendered a verdict in his favor for $1,750.

<p>Error to common pleas court.</p>

<p>DOWER — PARTITION.</p> <p>Husbands and Wives of Tenants in Common Necessary Parties in Partition.</p> <p>The husbands and wives of cotenants have an inchoate contingent right of dower in the respective shares so held 'in common, and in an action to apart the lands it is necessary, in order to foreclose their rights, that such husbands and wives be made parties.</p>

The defendant in error recovered a judgment below for the death of her husband who was being struck, while standing on ' the sidewalk on Fourth Avenue, Cincinnati, by an automobile which left the street and mounted the sidewalk. The machine was being operated at the time of the accident by a young man in the employ of the White Oak Coal Co.

<p>WILLS.</p> <p>Influence of Deceased Husband’s Desire on Wife in Disposing of Property Devised by Him to Her not Undue Influence.</p> <p>Where a woman of fine character and delicate sensibilities executes a will, after long deliberation and the full knowledge of her children, in which contrary to her own strong desire to give the property received by her from her deceased husband to her children, she disposes of the property in accordance with a written request received from her husband, the influence so operating upon her will not be treated, in an action brought by a grandchild to set the will aside, as an undue or improper influence.</p>

<p>Error to common pleas court.</p>